Q. We have an employee who is currently absent on two months long service leave. The employee is employed in our Sydney office and has been diagnosed to be suffering from a serious illness. The employee was admitted for treatment and will remain in hospital for approximately three weeks. His immediate manager has contacted the family and indicated the employee would not be fit to return to work for another two months. The employee has already been absent on long service leave for three weeks. Our question relates to the employee’s entitlement to personal/carer’s leave while already absent on long service leave.   

Would the employee be able to claim personal/carer’s leave for the period of their illness and have the equivalent long service leave credited to their long service leave accrual? Also, the period of the absence may also cover the Christmas-New Year period – so would the public holidays that fall in that period extend the period of long service leave?  

A. There are two separate issues to consider in this question.  

 

Personal/carer’s leave  

Extension of a period of long service leave when an employee qualifies for two separate forms of paid leave concurrently is usually determined by the relevant state or territory long service leave statute, or award-derived long service leave term. In this case, in the absence of an applicable award-derived long service leave term, the relevant statute is the Long Service Leave Act 1955 [NSW]. This Act states long service leave does not include any period of annual leave occurring during the period when the long service leave is taken, however, there is no reference to personal/carer’s leave. It is presumed that while the employee is already absent on a form of paid leave (long service leave) there is no entitlement to any other form of paid leave.   

The Act would need to specifically provide that long service leave is extended by the period of paid personal/carer’s leave. In the absence of such a term, the period of long service leave would not be required to be extended. The employer would proceed on personal/carer’s leave at the end of the period of long service leave. The employer could re-credit long service leave for the period the employee was ill (by agreement), although there is no legal requirement under the NSW legislation to do so.  

 

Other jurisdictions  

No state or territory long service leave legislation appears to specifically provide for an extension (or re-credit) of long service leave if an employee falls ill during a period of long service leave. It is presumed that in the absence of a specific provision to this effect an employee remains on long service leave and the period of leave is not extended by the period of the employee’s illness.   

 

Public holidays  

The NSW Long Service Leave Act states that where a public holiday falls within a period of long service leave the period of leave shall be extended by one day for each public holiday that occurs. Therefore, in this case, the employee’s long service leave is extended by the Christmas-New Year public holidays if the employee is absent on long service leave.   

If the employee is absent on paid personal/carer’s leave over the Christmas-New Year period, the Fair Work Act (s.98) provides that the employee is considered absent on the public holiday and not paid personal/carer’s leave.  

 

State/territory legislation  

The following is a summary of each state and territory long service leave legislation regarding the effect a public holiday has when it falls during a period of long service leave.  

  • Long Service Leave Act 1976 [ACT] – increases leave 
  • Long Service Leave Act 1981 [NT] – the period of long service leave is inclusive of any public holiday.  
  • Industrial Relations Act 2016[Qld] – increases leave 
  • Long Service Leave Act 1987 [SA]  – the period of long service leave is inclusive of public holidays.  
  • Long Service Leave Act 1976 [Tas]  – increases leave 
  • Long Service Leave Act 2018 VIC – increases leave 
  • Long Service Leave Act 1958 [WA]  – increases leave